CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY ROMAN CANON LAW IN REFORMATION ENGLAND pot

List of abbreviations Table of statutes Table of cases THE MEDIEVAL INHERITANCE English ecclesiastical law and the papal law books Canon law and medieval English common law THE FORTUNES

IN ENGLISH LEGAL HISTORY

ROMAN CANON LAW

R H Helmholz provides an extensive examination of the manuscript records of the ecclesiastical courts and professional literature of the English civilians Rebutting the views of Maitland and others, he shows how the lawyers in English ecclesiastical courts continued to look to the writers of the Continent for guidance and authority in administering the system of justice they had inherited from the Middle Ages Intellectual links between England and the Continent are shown to have survived the Reformation and the abolition of papal jurisdiction The extent to which papal material was still used in England during the sixteenth and seventeenth centuries will interest all readers and surprise many.

Clearly and elegantly written, this book is both a companion to and

development of Maitland's celebrated Roman Canon Law in Medieval

England It will be of great interest not only to legal and ecclesiastical

specialists but to any reader seeking a wider understanding of the tutional and intellectual context in which the English Reformation developed.

consti-R H HELMHOLZ is Ruth Wyatt Rosenson Professor of Law at the

University of Chicago His previous publications include Marriage Litigation

in Medieval England, also published (1975) in Cambridge Studies in English

Legal History.

CAMBRIDGE STUDIES

IN ENGLISH LEGAL HISTORY

Edited by

J H BAKER

Fellow ofSt Catharine's College, Cambridge

The Law of Treason in England

in the Later Middle Ages

J G BELLAMY Marriage Litigation in Medieval England

R H HELMHOLZ

The Common Lawyers of Pre-Reformation England

Thomas Kebell: A Case Study

Pettyfoggers and Vipers of the Commonwealth: The 'Lower Branch'

of the Legal Profession in Early Modern England

C W BROOKS

Sir William Scott, Lord Stowell HENRY J BOURGUIGNON Sir Henry Maine: A Study

in Victorian Jurisprudence

R C J COCKS

ROMAN CANON LAW

IN REFORMATION

ENGLAND

R H HELMHOLZ

Ruth Wyatt Rosenson Professor in

the University of Chicago

CAMBRIDGEUNIVERSITY PRESS

PUBLISHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE

The Pitt Building, Trumpington Street, Cambridge, United Kingdom

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© Cambridge University Press 1990 This book is in copyright Subject to statutory exception

and to the provisions of relevant collective licensing agreements,

no reproduction of any part may take place without

the written permission of Cambridge University Press.

First published 1990 Reprinted 1994 First paperback edition 2004

A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication data

Transferred to digital printing 2004

List of abbreviations

Table of statutes

Table of cases

THE MEDIEVAL INHERITANCE

English ecclesiastical law and the papal law books

Canon law and medieval English common law

THE FORTUNES OF ECCLESIASTICAL

JURISDICTION

The early Tudor years

The middle years of the sixteenth century

The reigns of Elizabeth and James I

DEVELOPMENTS IN LAW AND LEGAL

PRACTICE

Defamation

Marriage and divorce

Testaments and probate

General characteristics of civilian literature

Sources of knowledge of Roman canon law

Conclusion

page vn

X

xiiixvi

1420

283034415556697989104119121124131137142144149154

Appendix 1: Manuscript copies ofClerke's Praxis 196 Appendix 2: Ecclesiastical reports, 1580-1640 198 Index 200

The pages which follow attempt to describe the history of the canonlaw and the ecclesiastical courts in England during the era of theReformation That 'era' is here taken in an extended sense, as embrac-ing the reigns of all the Tudor monarchs together with that of James I,

or from 1485 to 1625 This choice of dates was dictated in the firstinstance by a desire to tell a fuller story than would be possible byconcentrating simply on the years when ties between England and thepapacy were cut, and also by a belief that the causes and consequences

of constitutional change would be more fairly seen over the course of alonger period Luckily, later research justified the choice The evi-dence shows that this part of the history of ecclesiastical jurisdiction inEngland cannot be adequately described by concentrating on a fewyears or upon a single event

Behind the description found in these pages lies a continuinginvestigation of the records of the ecclesiastical courts By the six-teenth century these records survive in great profusion for virtuallyevery English diocese and archdeaconry I doubt that anyone can domore than sample this vast store Certainly that is all I have done Thebook is also based, however, on a preliminary examination of anotherkind of legal literature It consists of a surprisingly large number ofmanuscript works written for and used in actual practice by theEnglish civilians, the advocates and proctors who staffed the spiritualtribunals This 'working literature', described in Chapter 4, permits amore complete look at the substance of the law enforced in theecclesiastical courts than that afforded by the records alone It hasprovided the most surprises and has changed my way of thinkingabout the legal history of the period in several ways

This book is an expanded and revised version of the MaitlandLectures, delivered in Cambridge during the Lent term of 1987 The

title of Maitland's famous work, Roman Canon Law in the Church of

viii Preface

England, was the obvious source of my own Probably this was

presumptuous on my part, and my original intention was to changethe title when I came to commit my findings to print However,working further on the subject made the title seem all but inevitable.For one thing, it was Maitland who established that the study of thecanon law was an essential part of English legal history It was he whomost trenchantly raised many of the themes touched upon by myresearch Though I have diverged from his steps in several places, it ishis path that I have followed and attempted to enlarge Also, andprobably more important, this book deals primarily with the subjectbest expressed by his title The history of ecclesiastical jurisdictionduring the Reformation era turns out to revolve mostly around theRoman canon law Its resilience, its vast store of resources, and thepressures put upon it during this era, furnish the central themes ofthis study

In one further respect, the Lectures and now the book track thepath Maitland laid out In dealing with this then controversial sub-ject, the great historian cautioned, 'Let us, as far as may be, stick toour legal last.'1 I have tried to take Maitland's words as my invariableguide Much beyond legal history can be made of the ecclesiasticalcourt records Social, religious, and even economic historians havefound them useful I have none the less stuck to their legal side, andthe story told here may well be thought incomplete on that account

On the other hand, it is important that someone deal with the legal

issues The ecclesiastical courts were courts of law They did not

simply enforce the political or religious preferences of the men whohappened to hold office within them at any particular time Concen-tration on legal aspects of their history has costs, but it also provides

an essential part of their history

There remains the pleasant task of thanking the many people whohave helped me To the Managers of the Maitland Memorial Fund,and in particular to Professors S F C Milsom and J H Baker, I amdeeply grateful for the invitation which led to this book To theMaster and Fellows of Trinity College, and especially to its Vice-Master, Professor Gareth Jones, I also owe a debt of gratitude Byelecting me a visiting fellow commoner for 1986-7, they made my stay

in Cambridge easy and interesting In doing the research for the book,

I enjoyed support provided by the Gerda Henkel Stiftung's stipendhonouring Professor Helmut Coing, and also generous grants from

1 Roman Canon Law 90.

the Guggenheim Memorial Foundation and the Russell Baker fund administered by the University of Chicago Law School Professors Gerhard Casper, J H Baker, Peter Stein and Dr Dorothy Owen read drafts of several chapters of the book, making corrections and sugges- tions that I have incorporated I have also profited from, and enjoyed, discussing the history of writs of prohibition with that subject's leading student, Professor Charles M Gray My greatest debt is to my father, who attended two of the Maitland Lectures, and whose example and generosity, many years before, made all of them possible.

A B B R E V I A T I O N S

Forms of Citation: Ecclesiastical causes are given according to the

name of the parties and diocesan court where the cause was in gation, the present record repository for each being given in the listbelow Common law cases are cited by their place in the nominatereports, though they may equally now be found in the reprinted

liti-English Reports References to the texts of the Roman and the canon

laws are given by appropriate book, title and chapter (e.g X 1.1.1 for

the first chapter of the first title of the first book of the Liber extra of the Gregorian Decretals) Mutatis mutandis the same method hps

been used in citation of works by commentators on the Roman canonlaw

BL British Library, London

Bath and Wells Somerset Record Office, Taunton

Bedford Archdeaconry Records, Bedfordshire Record

Office, County Hall, BedfordBeinecke Beinecke Rare Book Library, Yale

University, New Haven, ConnecticutBerkshire Archdeaconry Records, Berkshire Record

Office, County Hall, ReadingBodl Bodleian Library, Oxford

Bristol Bristol Record Office, The Council House,

BristolBuckingham Archdeaconry Records, Buckinghamshire

Record Office, AylesburyC.P Court of Common Pleas

CUL Cambridge University Library

Canterbury Cathedral Library, Canterbury

Carlisle Cumbria Record Office, The Castle, CarlisleChester Cheshire Record Office, Chester

West Sussex Record Office, Chichester

Edward Coke, Institutes of the Laws of

English Historical Review

Ely Diocesan Records, CambridgeUniversity Library

Archdeaconry Records, Essex Record Office,County Hall, Chelmsford

Devon Record Office, ExeterFree Library of PhiladelphiaFolger Shakespeare Library, Washington,DC

Glossa ordinaria

Gloucestershire Record Office, GloucesterCommissary Court Records, GuildhallLibrary, London

Harvard Law School Library, Cambridge,Mass

Hereford Record Office, The Old Barracks,Hereford

Archdeaconry Records, HertfordshireRecord Office, County Hall, HertfordCourt of King's Bench

William Lyndwood, Provinciate (seu

constitutiones Angliae) (Oxford 1679)

Lambeth Palace Library, London

Law Quarterly Review

Lincoln's Inn Library, LondonJoint Record Office, LichfieldLincolnshire Archives Office, The Castle,Lincoln

Norfolk Record Office, Norwich

Archdeaconry Records, HertfordshireRecord Office, County Hall, HertfordManuscripts Department, The UniversityLibrary, Aberystwyth

Manuscripts Department, The UniversityLibrary, Aberystwyth

Liber sextus (in Corpus Juris Canonici) John Strype, Annals of the Reformation

(1824 edn)

Tractatus universi iuris (1584-1600)

Trinity College, Dublin

Concilia Magnae Britanniae et Hiberniae

A.D 446-1717, David Wilkins edn (1737)

Hampshire Record Office, WinchesterWorcester (St Helen's) Record Office,Worcester

Liber extra (in Corpus Juris Canonici)

Borthwick Institute of Historical Research,York

1286 13 Edw I (Circumspecte agatis)

1315-16 9 Edw II, st 1 (Articuli cleri)

1353 27 Edw I l l st 1, c 1 {Praemunire)

1357 31 Edw I l l st 1,

c 4 (Probate fees)

c 11 (Intestate Estates)

1364 38 Edw Ill, st 2 (Praemunire)

1371 45 Edw I l l c 3 (Tithe of great wood)

1415-16 4 Hen V, st 1, c 8 (Probate fees)

1529 21 Hen VIII

c 5 (Probate fees)

c 6 (Mortuaries)

1531 23 Hen VIII c 9 (Citations)

1532 24 Hen VIII c 12 (Prohibition of Appeals)

1543 35 Hen VIII c 16 (Reform of Canon Law)

1545 37 Hen VIII c 9 (Usury)

1549 2 & 3 Edw VI c 13 (Tithes) 39, 93

1550 3 & 4 Edw VI c 11 (Reform of Canon Law)

1552 5 & 6 Edw VI c 1 (Religious Uniformity)

89, 117, 30-1

25, 30-1

178 178 ,37 23 23 ,37

23, 98, 175-6

39, 83, 160,

23 166

40, 167-8

40, 164,

36, 40, 159, 160,

45,

74

91, 94 :

180 159 171 193 36 91 165 160 91 ,76 ,98 116 , 98, 130, 160-1

40, 160 36

1 Mar st 2, c 2 (Repeal of Edwardian Acts)

1 Ph & Mar c 8 (Repeal of anti-papal Acts)

75, 165 160 53 161 161 106 162 161 161

53, 116, 160

160, 162 161

53, 116, 161

162 165 53 116 110

76, 161, 166

160 161 162 110no110 116 79

C A N O N S O F 1604Canon 15 (Liturgical observances) 169Canon 41 (Qualifications for benefices) 193Canon 49 (Qualifications for preaching) 130Canon 58 (Liturgical dress) 169Canon 59 (Teaching requirements) 169Canon 75 (Clerical behaviour) 169Canon 91 (Choice of parish clerks) 171Canon 99 (Prohibited marriage degrees) 75Canon 107 (Bond in sentences of divorce) 74Canon 115 (Presentments by churchwardens) 66, 130, 170Canon 122 (Sentences of deprivation) 170

T A B L E O F CASES

Absent Spouse, Case of (c 1610) 166

A B., Case of (1596) 165

Ackworth c Wyn (1578-9) 101, 182 Andrews c Bailey & Prynne (c 1620) 142

Anon (1586) 184Anon (1602) 164Anon (1605) 69, 163

Anon (c 1605) 192

Anon (1610) 83Anon (1610) 187Anon (1615) 51,62Anon (1616) 184Anon (1626) 176Anon (1627) 62Anon (1629) 79

Atkinson et al., Ex officio c (1613) 109 Axtell, Ex officio c (1597) 85

Ayersc Croe (1582) 98Ayliffs Case (1627) 184

Bagnall v Stokes (1588) 184 Baldwyn v Girrie (1613) 94

Banting c Edwards (1600) 86

Barneboe, Ex officio c (1608) 113 Barret, Ex officio c (1604) 108

Barrie, Ex officio c (1588) 110

Baston, Ex officio c (1600) 76

Baxters Hopes (1611) 184

Beadle v Sherman (1597) 93 Beck c Mylborne (1581) 182

Beeche, Ex officio c (1612) 118 Bellamy v Alden (1627) 183 Benett c Martyn & Martyn (1524) 33 Berisford c Babington (1599-1601) 118 Birtbye, Ex officio c (1597) 109 Blatcher, Ex officio c (1609) 112 Bleurhesset, Ex officio c (1593) 109 Bowry v Wallington (1626) 174 Bradstonde, Ex officio c (1606) 77

Bradwell's Case (1626) 60

B rasgr idel c Aid wort h (1601) 141

Bristow*; Bristowe (1611) 184

Britnel, Ex officio c (1606) 72 Broke & Offley c Barret (1584) 8 Brooke, Ex officio c (1613) 116 Broughton c Povae (1602-8) 185 Brown v Wentworth (1606) 89, 183 Browne c Alleson (1573) 70 Browne, Ex officio c (1601) 111 Buntinge, Ex officio c (1594) 113 Bury c Nossell (c 1605) 98, 167 Bushe, Ex officio c (1599) 107 Butcher c Hodges (1619) 60, 68, 189 Butler, Ex officio c (1592) 114

Cabellc Eger (1599) 59, 60

Carlton v Hutton (1625) 184 Carpenter, Ex officio c (1611) 119

Colec Tucker (1617) 96

xviii Table of cases

Colier, Ex officio c (1598) 110

Collier, Estate of (1605) 81

Collier, Ex officio c (1616) 72 Collins, Ex officio c (1621) 108 Collyer, Ex officio c (1621) 112 Condict v Plomer (1611) 171

Cony worth, Ex officio c (1611) 62

Cooke, Ex officio c (1616) 110 Couper v Andrews (1612) 51 Cowde, Ex officio c (1620) 114

Cox *; Worrall( 1607) 66Crabbe & Brigges, Ex officio c (1604) 109

Cripp & Austen, Ex officio c (1585) 106

Critchlowe, Ex officio c (1616) 72

Crompton v Dudley (1641) 62 Crooke c Bennet (1601) 65 Cundy v Newman (1609) 183 Dene c Dais & Charlton (1602) 163 Dent's Case (c 1600) 98

Dickenson, Estate of (1606) 189Dickesc Coles (1605) 59Dilke c.Allen (1600) 189Dillingham c Smith (1597) 67

Dister c James (1599-1600) 163 Dix's Case (c 1620) 66

Dudley, Estate of (1615) 85

Durham, Estate of Bishop of (c 1590) 83 Eaton et al c Lloid (1580) 62 Eden & Curd c Strutte (1598) 138 Edmondes, Ex officio c (1621) 111 Edwards, Ex officio c (1596) 106 Egerton v Egerton (1614) 81-2

Enbyt; Walcott (1611) 16

Fletcher c Cosin (1599) 70

Fox's Case (1596) 168

French c Basuet (1555) 57 Fynnett c Curtys (1576) 102

Hobsum c Astley & Whittill (1524)

Hodge & Everill, Ex officio c (1588)

xx Table of cases

Hoskins, Ex officio c (1598) 119 Hotchkin c Pakenham (1605) 101

Hyat's Case (1615) 79

Ireland, Ex officio c (1589) 112

Jake's Case (1616) 99

James, Ex officio c (1590) 112 James, Ex officio c (1604) 109

Jarvisc Hallowell(1590) 162

Jeasmond, Ex officio c (1605) 110 Johnson et ux., Ex officio c (1592) 116 Jones, Ex officio c (1589) 73 Jucks v Cavendish (1613) 184 Keblewhite c Wade & Philips (1598) 73, 141 Keemish's Case (c 1600) 193-5 Kent, Ex officio c (1589) 114 Kinder c Barton (1597) 59 Kingwell c Taylor (1559) 60 Knight, Ex officio c (1589) 115 Kytchynman, Ex officio c (1571) 164 Lacocke, Ex officio c (1598) 116 Lambert c Franklin (1600) 69 Lamhorne, Ex officio c.{\624) 113

Langdel's Case (1614) 79Leaper, Ex officio c (1600) 118

Lewes v Whitton (1625) 62 Lindley c Henson (1597) 118

Lodge's Case (1584) 190

Lynche v Porter (1610) 164, 180 Machyn, Ex officio c (1620) 113

Maie, Ex officio c (1621) 108

Man's Case (1591) 76

May v Gilbert (1613) 184 Medcalf c Bishop (1601) 66

Mildmay's Case 191Modus Decimandi, Case of (1609) 145

Mody c Cowper (1569) 100 Monford c Pigott (1598) 94 Morrison, Lady v Cade (1607) 68 Mullinex c Rymer et al (157+-5) 142-3 Mustell, Ex officio c (1377) 118

Napper's Case (1618) 176Nash*; Molins (1590) 102

Newell c Sadler & Hickes (1599) 102 Osborne c Moorgen (1613) 66 Over, Parish of, Case of (c 1600) 177

Palmers Boyer (1593) 67

Pare alias Poore, Ex officio c (1596) 166 Parker, Ex officio c (1602) 112 Parrye, Ex officio c (1592) 113

Peacock's Case (1611) 131

Pearson, Ex officio c (1588) 110 Petche c Tiler & Janson (1601) 193 Peterson, Ex officio c (1513) 33 Petter c Luxmore (1580) 187 Petwen c Smyth (1535) 64 Philips c Piper et al (1599) 118 Phillips, Ex officio c (1599) 114 Picke, Ex officio c (1621) 114 Pingre, Ex officio c (1608) 111 Plumtree, Ex officio c (1597) 118 Potts c Davy (1601) 185

Powell, Sir Edward's Case (1641) 79

Pulleyne c Bolton & Foster (1589) 191 Pye, Ex officio c (1596) 86

R v Page & Bishop of London (1599) 192

xxii Table of cases

R v Wood (1587) 93

Radford, Ex officio c (1620) 113

Ram v Patenson (1596) 175 Rayment, Ex officio c (1604) 115 Reade v Stonehouse (1619) 185 Reade, Ex officio c (1584) 115 Reade, Ex officio c (1616) 112 Redall, Ex officio c (1610) 113

Reedc Bragg (1615) 43Revell, Ex officio c (1587) 72

Reynoldes, Ex officio c (1613) 107

Richards, Estate of (1605) 85Risleyc Heyner (1502) 61Robert's Case (1611) 184Robinson's Case (1602) 100

Rodwaye c Newton (1596) 60 Roebech, Ex officio c (1600) 72

Rokesbie, Ex officio c (1611) 116

Sandecoke, Ex officio c (1456) 61

Sanford's Case (1600) 99Savilec Savile (1597) 77

Seaberne, Executors of c Marten (1588) 94

Seer, Ex officio c (1557) 38Semaine's Case (1612) 81

Sharplus c Dawson (1598) 57

Shawec Barton (1596) 59

Sheppard, Ex officio c (1600) 108 Simpson c Turner (temp Jac I) 152

Singer*; Gill (1572) 98

Slinet, Ex officio c (1609) 116

Smart c Reve (1601) 71

Smith c Grove (1602) 192 Smith v Sharffe (1609) 100 Smith, Ex officio c (1595) 118 Smyth, Ex officio c (1609) 112 Snow c Allen (1602) 186 Snow c Dr Morris (1602) 119 Somes c Morris (1601) 99 Sonley, Ex officio c (1596) 166

Stanelie's Case (1628) 79

Stapleton c Clerke (1599) 97, 102 Starke, Ex officio c (1620) 112

Stoker Sykes(1626) 139

Stransham v Medcalfe (1588) 185 Suckley c Wyndour (1590) 186 Swaine, Ex officio c (1595) 86 Swett, Ex officio c (1623) 72 Swifte c Johnson (1585) 174

Uffington, Case of Churchwardens of, (1615) 184

Upsall c Pursglove (1609) 57, 67 Upton c Bishop of Bath and Wells (1601) 97 Vaux & Ellys, Ex officio c (c 1600) 49 Viccars, Ex officio c (1616) 62

Vincent c Roper (1605) 163Wardc Spire (1592) 96

xxiv Table of cases

Whalley, Estate of (1596) 88

Whitton v Weston (1629) 102 Williamson & Hall, Ex officio c (1605) 111 Willson, Ex officio c (1611) 112

Wilson c Stile (1582) 178Wine Win (1601) 177

Wyer c Atchley et al (1600-1) 138 Wysecombe, Ex officio c (temp Jac I) 119 Yelverton c Yelverton (1587-8) 80

In the middle of the fifteenth century, the courts of the Churchexercised jurisdiction over broad though not unlimited areas ofEnglish life The principal boundaries of that jurisdiction musthave seemed well settled at the time At least they had been longobserved, in fact since a time of dispute and settlement more thanone hundred and fifty years before, during the reigns of Edward I andhis son.1 A few matters of serious contention with the courts of theKing did exist, flaring into occasional dispute when the stakes werehigh enough There were also many matters of disagreement that

could have separated the courts of Church and Crown, had either side

attempted to implement the full extent of its jurisdictional claims.But this did not happen The surviving records reveal a remarkablestability in the subject matter jurisdiction of the English courtsChristian

As things stood, the ecclesiastical courts dealt with all questionsinvolving the formation and annulment of marriage That is, causes(the canonical word used for law suits) brought to enforce contracts ofmarriages entered into by words of present consent, to secure judicial

separations on the grounds of adultery or cruelty, and to dissolve de

facto marriages contracted contrary to the canonical impediments, all

belonged to the courts of the Church So too did exclusive probatejurisdiction in most parts of England The ecclesiastical tribunalsproved all last wills and testaments not involving freehold property,and they supervised the collection of the assets of decedents andthe payment of debts and legacies out of those assets Moreover,the courts of the English Church provided the sole remedy availablefor defamation The royal courts offered no relief except in special

1 See Councils & Synods 1:107 See generally the judicious survey by Robert E Rodes,

Lay Authority and Reformation in the English Church: Edward I to the Civil War

(1982) 12-46.

1

2 Roman canon law

situations, and the local courts in England had themselves withdrawnfrom the field over the course of the fourteenth century The ecclesias-tical courts also exercised an important jurisdiction over sworn oaths

or perjury In practice this had become a means of enforcing simplecontracts to which an oath had been added to the promise Andfinally, the ecclesiastical courts heard causes involving tithes and whatwould come to be called church rates These included suits arising out

of failure to pay tithe, the tenth of the yearly increase of crops, herds,and industry which every Christian in theory owed to his parishchurch, and also causes dealing with the charitable oblations that thetwin springs of custom and piety had fastened upon the averageEnglishman

These were the five principal heads of the Church's civil or stance' jurisdiction Several additional, though more minor matters,also came within the civil cognizance of the English ecclesiasticalcourts One example is the suit to require payment of an annual

'in-charge upon an ecclesiastical benefice, the causa annuae pensionis

that was cousin german to the common law's action of annuity.2

Another area covered disputes about church property, things likeecclesiastical ornaments or money given for charitable uses In terms

of overall volume, however, the five categories listed above easilydominated the litigation heard in the spiritual courts For estimatingthe impact of the Reformation on the canon law in England, theyprovide an accurate gauge of the instance side of ecclesiasticaljurisdiction

Equally important at the time, however, and equally importantnow for assessing what happened to ecclesiastical jurisdiction during

the Reformation era, was the criminal or ex officio side It consisted of

causes begun, in the name of the court itself, against men and womenwho had publicly violated accepted norms of Christian behaviour InEngland, this jurisdiction encompassed offences against morality(such as fornication or public scolding), deviations from the teachings

of the Church (such as blasphemy or contempt of the clergy), and

2 Pensions were defined in the canon law as a 'certain portion taken from an

ecclesiasti-cal benefice ex causa and ad tempus\ as for example would be appropriate as a means

of paying for having the church bells rung See Girolamo Gigas (d 1560), Tractatus depensionibus ecclesiasticis (Venice 1542) Quest 1, no 1 and Quest 3, no 2 The

connection with the action of annuity was made by an Elizabethan common lawyer in Folger MS V.b.5, f 177.

offences involving the fabric of individual churches (such as neglect ofornaments or disturbances within churchyards) In addition, muchregulation of the large clerical estate belonged to the ecclesiastical

courts, and this was normally exercised on the ex officio side Simony,

unlawfully holding more than one benefice, and failing to provide thelaity with adequate spiritual ministrations thus came within theirroutine oversight

In practice there was always some overlap between the ex officio

and the instance sides of ecclesiastical jurisdiction Defamation,for instance, could be raised either way, by a 'criminal' proceedingagainst the individual def amer or by a private suit brought on behalf ofthe person defamed Moreover, a hybrid criminal proceeding in-itiated by a private individual existed In this, a private individual'promoted' the court's office jurisdiction Despite this overlap, thedistinction between the 'criminal' and civil sides remained important.Many of the courts' records were separated accordingly, and differ-ences in procedure employed, and occasionally in the substantive lawapplied, followed from the nature of the jurisdiction invoked.3 Thedifference should be remembered at points in tracing the history ofthe relationship between the Reformation and ecclesiasticaljurisdiction

Probably more important for understanding this subject, however,will be a preliminary discussion of two more general aspects of thespiritual jurisdiction There are two basic subjects The first is therelationship of English canonical practice to the formal canon law.The second is its relationship with English common law Maitlanddealt with both in his work on the subject, and indeed they mustprovide principal themes for any serious study of the place of thecanon law in English legal history The first requires comparingpractice with the texts found in what Maitland called 'the papal lawbooks' The second requires examination of specific examples ofcompetition, conflict, and co-ordination between the twojurisdictions

3 For descriptions of English practice, see Henry Conset, The Practice of the Spiritual

or Ecclesiastical Courts (1685) Pt VII, c 2; John Ayliffe, Par ergon juris canonici Anglicani (1727) tit 'Of the Office of the Judge' See also Paul Fournier, Les Officialites au moyen age (1880) 275-8.

4 Roman canon law

ENGLISH ECCLESIASTICAL LAW AND THE PAPAL LAW

apolo-Maitland found little to be said in support of this position Everypiece of evidence he examined showed the medieval English Churchabsolutely dependent upon papal law The evidence that supportedEnglish 'independence* all turned out to be taken from cases where thesecular power constricted the ability of the ecclesiastical courts tofollow the canon law.5 What was needed to prove the contrary argu-ment, Maitland contended, was a situation where the ecclesiasticalcourts acted contrary to the formal canon law and where they were notconstrained to do so by royal writs of prohibition or the threat of

Praemunire Of this he saw no sign Instead, where their hands were

free, the courts invariably followed the Roman canon law Indeed, the

4 See Roman Canon Law, which collects his articles on the subject Bishop Stubbs' views are found in Report of the Commissioners into the Constitution and Working of the Ecclesiastical Courts, Vol 1 (1883) The controversy has generated a scholarly

literature over the years, reviewed and added to by Charles Donahue, Jr, 'Roman

Canon Law in the Medieval English Church: Stubbs vs Maitland Re-examined after

75 years in the Light of some Records from the Church Courts', Michigan L Rev 72 (1974) 647-716 See also G R Elton, F W Maitland (1985) 69-79; Hermann Lutz, Das Canon Law derKirche von England (1975).

5 See 'Church, State, and Decretals', in Roman Canon Law 53-5.

English ecclesiastical lawyers treated the papal decretals as 'bindingstatute law' To talk of the medieval Church of England as 'departingfrom the church of Rome and evolving a jurisprudence of her own',Maitland argued, was contradicted by all the available evidence.6

Indeed it was dangerous nonsense

It will not be the purpose of this book to enter at length into this bynow ancient controversy, still less to attempt to breathe life into theargument that the English Church considered itself 'independent' ofpapal law during the Middle Ages Put that way, the argument isanachronistic and even silly Not even Stubbs took so extreme a view.And if put to choose between the positions of Maitland and Stubbs,

we would certainly be right to follow Maitland However, it will be my

argument that the choice need not be made, at least in the stark formthe original controversy took In the years since Maitland wrote, agreat deal has been discovered about the kinds of litigation actuallyheard in the medieval ecclesiastical courts The record evidencewhich Maitland knew existed but could not himself explore has beenexamined Moreover, it is also possible to take a slightly longer look atthe nature of the Roman canon law than Maitland was able to manage

He himself claimed only a 'toe in the water' sort of familiarity with itstraditions.7 A study of both of these puts the matters at issue betweenStubbs and Maitland into a different light And it is a clearer light, Ithink, by which to discern what happened to the Roman canon lawduring the era of the English Reformation

The character of English litigation

English ecclesiastical jurisdiction as put into everyday court practiceduring the medieval period contained a mixture of things, some ofwhich were almost perfectly consistent with what was found in the'papal law books', some of which were not The largest part fellsomewhere in between Looking seriously at this sometimes awk-ward, sometimes close, fit between formal law and court practice willshow the difficulty of some of the assumptions both Maitland andStubbs brought to the original controversy

6 Ibid 59, and 'William Lyndwood', ibid 3-4.

7 See Maitland, 'Canon Law in England: A Reply to Dr MacColl', E H R 16 (1901)

35-45, reprinted in Collected Papers of Frederick William Maitland (1911) III :145.

6 Roman canon law

The law of marriage and divorce demonstrates general conformitybetween theory and court practice The canon law defined a valid andindissoluble marriage as any union contracted by words of presentconsent.8 No formal ceremony, parental consent, or sexual consum-mation was required The English courts enforced this consensualistview of marriage, even though it was not entirely consistent with thesentiments, or at least the habits, of the English people.9 The canonlaw texts also treated as legitimate any children born to parents whosemarriage was subsequently dissolved, provided that the parents hadentered into the marriage in good faith.10 The English ecclesiasticalcourts, here again, followed the canon law's view of legitimacy eventhough not all laymen would have agreed with it.11 Thus, one can saythat although English practice left room for a few local peculiarities,and although family law must always be subject to some bending bythe desires and the needs of litigants, the canon law of marriage asfound in the Decretals was regularly enforced by the English spiritualtribunals during the Middle Ages It fits Maitland's picture of papallaw as binding statute law

The law of defamation and the law of wills, however, do not.They stood outside and even appear to have contradicted the texts

of the papal law books Defamation in medieval English practicemeant the malicious imputation of a crime If a man merely accusedhis neighbour of professional incompetence or fastened a personal'defect' like illegitimacy or leprosy upon him, the Provincial Consti-tution enacted at the Council of Oxford in 1222, which determinedthe medieval English law of defamation, provided no remedy.12

Papal decretals, however, authorized broader principles of relief

Following the Roman law's actio iniuriarum, decretal law allowed a

legal remedy for any abusive language that caused harm to a person'sreputation.13

No royal interest would have prevented the medieval EnglishChurch courts from enforcing this broader concept of defamationfound in the papal law books No prohibition lay to prevent a spiritualcourt from hearing a slander case where a mere 'defect' had been

8 X 4.1.31; see generally A Esmein, Le Manage en droit canonique (1891) 1:95—137.

9 R H Helmholz, Marriage Litigation in Medieval England (1975) 27-40.

10 X 4.2.8 » Marriage Litigation 98-100.

12 Lyndwood, Provinciale 347 s.v crimen.

X 5.36.9 This question is discussed at more length in S.S., Vol 101 (1985) xvi-xx.

imputed or where the slanderous language had merely held the tiff up to 'hatred, ridicule and contempt* However, such cases do notappear in the surviving medieval records The law regularly applied incourt practice was based on English provincial law, and this meansthat in the law of defamation, one does truly see ecclesiastical judgeswhose 'hands were free' following a rule of law contrary to that foundstated in the papal law books.

plain-Testamentary law in medieval English practice similarly divergedfrom what one would expect from reading the texts of the Romancanon law Not only did the jurisdictional pattern differ from theunified system of administration and heirship followed on theContinent and sanctioned in the formal canon law,14 English practicealso allowed probate of virtually any testament that could be satis-factorily proved to represent the last wishes of the decedent Thus,the testimony of two witnesses to an oral or nuncupative will, perhapseven less, would suffice to prove the validity of a testament inEngland.15 This is not the regime sanctioned in the 'papal law books'

A papal decretal specifically required the presence and the testimony

of both two witnesses and that of the decedent's parish priest forupholding the validity of an ordinary testament.16 By taking this more'generous' view of testamentary validity, the English spiritual courtsseem again to have been refusing to treat the papal law books as'binding statute law' And again, no royal court rule required this ofthem

This divergence between English practice and the texts of the papaldecretals never meant that the Roman canon law was irrelevant toquestions involving defamation and wills in England In fact thereverse was true Decretal law shaped English practice at manypoints Its texts could be, and were, used to answer many of thequestions of legal detail upon which lawyers customarily spend theirworking lives For instance, in the law of defamation the answer to thequestion of whether or not malice on the part of the speaker could bepresumed from the character of his words came out of the Roman

14 See generally Michael M Sheehan, The Will in Medieval England (1963) 163-85.

15 H Swinburne, Briefe Treatise of Testaments and Last Wills (1590) Pt 4, §§ 21:2,

21:4,25:8.

16 X 3.26.10, 11 These testamentary formalities were even mentioned in some English

synodal statutes, e.g., Statutes of Exeter II (1287) c 50, in Councils & Synods 11:1047 See also Jerome D Hannan, The Canon Law of Wills (1934) 270-9.

8 Roman canon law

canon law.17 So did the answer to the question of whether specificwords in a dead man's last will and testament were legally sufficient toconstitute someone as his executor.18 English ecclesiastical lawyershad no desire to be 'independent' of the Roman canon law on these andmany like points They used it consistently Moreover, as lawyers like

to do, they sought to rationalize what they did in terms of the law theyfound in the works of established authority, in this case the works ofContinental commentators.19 Even so, it remains undeniable that on acentral issue of practice in the areas of defamation and testaments,English practice was not what one would expect from enforcing thetexts of the papal law books

The law of tithes provides a good example of a gray area betweenthe identity found in marriage law and the disparity found in the law

of defamation or testaments Tithing practice in England ated strong elements of local custom, some of which would haveseemed 'out of step' with the formal law At the same time, however,the practical law of tithes was also greatly informed by the canon law

incorpor-as interpreted by Continental canonists Its bincorpor-asic requirements weredefined by canonical principles, but these principles themselves left alarge area in which local custom could prevail

The medieval tithing customs of the city of London show thispattern According to these rules, men paid a fixed and small portion

of their house rent in lieu of all personal tithes This seemed contrary

to the formal canon law under which all men owed a tenth of theirincome,20 and in fact the fifteenth-century English canonist William

17 Lyndwood, Provinciate 346 s.v maliciose A later example isMedcalfc Bishop (Ct.

of Arches 1600), Bodl Lib Tanner MS 427, fols 62-4v; among other authorities, the advocates cited texts from both the Roman and canon law, and works by Angelus

de Gambilionibus (d 1541), Bartholomeus Salicetus (d 1412), Oldradus de Ponto

(1335), Cinus de Pistoia (d 1336), and Petrus Paulus Parisius (d 1545) inBenet c Edwards (1605), London Guildhall MS 14488, f 83v, only Lyndwood and Cod 9.35.5 (Si non convicii) were cited for the same point.

18 Broke & Offley c Barret (1584), BL Lansd MS 135, f 81v-8; cited in addition to

the texts were works of Gulielmus Durantis (d 1296), Bartolus (d 1357), tanus (d 1453), Petrus Peckius (d 1589) and Jason de Mayno (d 1519) The cause itself also involved other issues.

Panormi-19 The discussion by J L Barton, in his Introduction to Christopher St German's

Doctor and Student, ed J L Barton (S.S Vol 91, 1974) pp xxxviii-xxxix, is illuminating See also Brian Ferme's article in The Jurist (forthcoming) For a

Continental example on the question of the number of witnesses to a testament

required, see, e.g., Joachim Mynsinger, Singularium observationum iudicii perialis camerae (Turin 1595) Lib I, Obs 96.

im-20 See Susan Brigden, 'Tithe Controversy in Reformation London'\ Journal of astical History 32 (1981) 44-70.

Ecclesi-Lyndwood appears to have thought the custom invalid on that count.21 On the other hand, the London custom could also be de-fended as a valid composition or way of meeting the tithe obligation.The canon law left considerable latitude to local custom in fixing theexact manner of paying tithes, and it could be argued that the Londoncustom was simply one more example of that latitude.22 That itreduced the amount the clergy received in tithes rendered it suspect,but not necessarily invalid.

ac-Much the same could be said of the tithe obligation in other parts ofEngland As one reads through the records of litigation in the ecclesi-astical courts, it quickly becomes apparent how large a share ofdefining the obligation local custom took The manner of payingpraedial tithes and even the existence of any duty to pay personaltithes depended upon habit and agreement as much as they did oncorrect interpretation of the texts of the papal law books And thisresult was not primarily a matter of resistance to tithes on the part ofthe laity It was what the courts of the Church themselves put intoeffect English practice in the law of tithes, in other words, wassomething of a mixture of decretal and local customary law

None of these four instances would have surprised a Continentalcanonist He would have been able to harmonize some of them with apermissible reading of the texts of the Roman and canon laws Hewould also have been used to some disjunction between legal practiceand canonical texts He would have found it even within contempo-rary commentaries on the canon law itself, and he would have seenmuch of the same situation when he looked at legal practice in otherlands where the Pope's writ ran.23 English canonical practice in theareas of defamation, tithes and testaments would not have struck him

as unusual

What might conceivably have surprised Continental canonists ing at English practice was not what ecclesiastical jurisdiction con-

look-tained, but rather what it did not contain The English Church

exercised virtually no civil jurisdiction over the persons of the clergy.Under the canon law, only the ecclesiastical courts could hear civil

21 Provinciate 201 s.v negotiationum ll Ibid.

23 On the emotive subject of the legitimacy of payment of infeudated tithes to laymen, for example, see the comments by the Spanish canonist, Johannes de Turrecremata

(d 1468), Commentaria superDecreto (Lyons 1519-20) at C 16 q lc 68 (Quoniam quicquid), no 7: 'Ecclesia enim sustinet quod milites habent et dissimulat; et

quamdiu ecclesia dissimulat non tenetur quis ecclesie residuum decimare.'

10 Roman canon law

suits involving the clerical order Called jurisdiction rationepersonae,

as opposed to jurisdiction ratione materiae, the privilege reached all

litigation between parties that did not directly involve feudal ures.24 In England, except for the jurisdiction over criminous clerksthat Thomas Becket had won by his martyrdom, the ecclesiasticalcourts themselves ignored this principle No such causes appear inany of the act books so far discovered The regular disregard of thisaspect of the papal law is all the more striking in light of a cleardecision of the Roman Rota in the 1370s that the English practice was

ten-invalid The domini of the medieval Church's highest court of appeal

explicitly condemned the English custom of conceding subject matterjurisdiction in suits involving clerics to the royal courts.25 They held itunjustified under any canonical theory But nothing changed as aresult English custom continued to override the canon law, even afterthat latter had been specifically defined by the system's highest court

of appeal

Maitland noticed this striking instance of divergence between theRoman canon law and English custom, and he described it as onemore example where the King's 'strong hand' tied the hands of theEnglish judges.26 In formal terms, his view is defensible Writs ofprohibition were available to, and in fact used by, clerics sued beforeecclesiastical tribunals in causes where the subject matter fell withintemporal cognizance.27 On the other hand, the entire absence of

attempts to enforce this jurisdiction ratione personae from the

surviv-ing records of the ecclesiastical courts must suggest caution in fullyaccepting Maitland's explanation The> courts had weapons of theirown to counter writs of prohibition,28 and where both parties tolitigation were themselves ecclesiastics, as happened with depressingfrequency in actions of debt and trespass, the searcher in the court

records might expect to find some sign of this vital canonical principle

at work At least he might have a legitimate expectation of seeing itraised He finds signs of spirited defence of ecclesiastical jurisdiction

24 X 2.2.1; see also Paul Fournier, Les Officialites 64-73.

25 See Decisiones antique sacre Romanae Rotae (1509) No 840 The decisio is

discussed in Walter Ullmann, 'A Decision of the Rota Romana on the Benefit of

Clergy in England', Studia Gratiana 13 (1967) 455-89.

26 'Church, State, and Decretals', in Roman Canon Law 62.

27 G B Flahiff, 'The Use of Prohibitions by Clerics against Ecclesiastical Courts in

England', Mediaeval Studies 3 (1941) 101-16.

28 See 'Writs of Prohibition and Ecclesiastical Sanctions in the English Courts

Chris-tian', Minnesota L Rev 60 (1976) 1011-33.

in other areas He finds much canon law applied even though therewere common law rules to the contrary.29 But in this area, there isnothing Though English bishops occasionally complained about thesituation, the searcher finds little to suggest that the bishops' courtsattempted to do anything about it The canonical principle, and the1370s Rota decision, were apparently dead letters in the English

spiritual courts Civil jurisdiction ratione personae remained a matter

of theory only in medieval England

In sum, examination of English ecclesiastical court records showsthat in practice the judges tacitly accepted the restriction of ecclesias-tical jurisdiction to one based solely on subject matter The situation,however uncanonical, was tolerated This means that the recordevidence produces several examples where the judges whose 'handswere free' habitually left the texts found in the 'papal law books'unenforced These divergences between law and practice at thevery least invite reassessment of the original controversy betweenStubbs and Maitland Such a reassessment will not show that theecclesiastical courts in England were 'independent' of papal direction,but it does show a different habit of mind about practice and legalrule than Maitland and his opponents brought to the originalcontroversy

Both sides to the original controversy thought in terms of the legaltheory they knew best, that is the jurisprudence of legal positivism.Either the decretals were regarded as 'binding statute law', or theEnglish church enjoyed an unfettered 'right of accepting some andrejecting others'.30 For Maitland, as for his opponents, it must havebeen one or the other When he found medieval canonists writing that

a law's validity was confirmed moribus utentium, he concluded that

the opinion could only be 'some muddled definition' In any event itwas 'most unfortunate for them'.31 To Maitland, the Rota Romana

must have appeared as something like an early day House of Lords.32

He supposed that once this highest court of appeal had spoken, thediocesan courts would fall into line if they could

That is not how things worked The medieval canon law admitted,

or at least tolerated, a disparity between formal rule and local

29 See Charles Donahue, 'Roman Canon Law in the Medieval English Church', note 4 above.

30 'Church, State, and Decretals,' in Roman Canon Law 81.

31 'William Lyndwood', ibid 31. 32 Ibid 43.

12 Roman canon law

customary practice that was hard to grasp in the heyday of Austinianjurisprudence Indeed it is hard to grasp today We may be dissatisfiedwith the descriptive sufficiency of legal positivism, but we are stillaccustomed to think of law as the command of a sovereign, and we see

in the medieval Church a hierarchical system ideally suited to enforcecommands The evidence, however, calls us to think again It calls us

to examine more carefully the law of the medieval Church and thescholarly traditions that grew up and flourished around it

The character of the Roman canon law

Medieval jurists did not regard the texts of most papal decretals as'binding statute law' in the sense meant by Maitland This is evident

in learned commentaries on the canon law It is evident from theinternal fate of some of the decretals themselves.33 It is evident in

Continental court decisions, even some of the decisiones of the Roman

Rota itself The judges and the canonists habitually treated many ofthe texts with a freedom that is incompatible with a positivist under-standing of law as judicial command backed by legal sanctions.34

Some of what they did could be classed as 'statutory interpretation'and would not look much different from what happens in any legalregime However, when one looks closely at specific instances, itbecomes clear that they went a good deal further than merely in-terpreting authoritative commands

Instances of the freedom which medieval jurists felt in dealing withthe texts abound in the literature, but a particularly instructive

33 E.g., the decretal of Alexander III holding that security for the payment of debts by

a decedent's executor must be given before burial of his body would be allowed See

X 2.28.25; Regesta pontificum Romanorum, No 14312 (2nd edn P Jaffe* & S.

Loewenfeld eds 1885—8) 11:410 This did not become accepted canon law; see the

discussion in Councils and Synods, 1:489, n 1.

34 See Rene David, Preface to English Edition, French Law: its Structure, Sources, and Methodology, trans M Kindred (1972) viii-ix: 'It is crucial to remember that

for many centuries "the law" as taught in the universities was purely an ideal law While the rules of the ideal law were never entirely adopted, the rules developed by the government and the courts were never regarded by scholars, or by public opinion, as the law This concept is difficult for the common law lawyer to under- stand, inasmuch as the common law is tied by definition to the work of the courts.'

See also Joseph Canning, The Political Thought ofBaldus de Ubaldis (1987) 64-8; Eric Waldram Kemp, An Introduction to Canon Law in the Church of England (1957) 11-32; Luigi Lombardi, Saggio suldirittogiurisprudenziale (1967) 119-25.

example is provided by one of the questions already mentioned, onwhich English practice diverged from the formal texts That is thequestion of how many witnesses must be present at the execution toallow a court to treat a last will and testament as legally valid Thetexts of the two papal decretals on the subject seem clear enough.There must have been two trustworthy witnesses plus the parishpriest present at the time an ordinary last will and testament was madefor it to be probated.35 If a bequest ad pias causas were at issue,

however, then the presence and testimony of 'two or three legitimatewitnesses' would suffice.36

These two decretals never functioned as modern lawyers expectstatutes to In the hands of medieval commentators, they and theRoman law on the subject led to speculation, distinction, and dis-

agreement How many witnesses were to be required became a

quaes-tio dubitabilis,37 a quaestio perdifficilis,38 On the one hand, the civillaw's rules requiring the solemnity and certainty afforded by severalwitnesses were evidently 'just and for the common utility' Perhapsthey were to be preferred.39 On the other hand, the law's paramountgoal was to establish and enforce the testator's true last wishes, and thetestimony of two persons or sometimes even fewer ordinarily sufficed

to do this At least in the forum of men's conscience nothing matteredexcept the intentions of the testator,40 and this implied a more relaxedstandard, perhaps more relaxed than that provided in the two de-cretals Antonius de Butrio (d 1408), for instance, held that thetestimony of only two unimpeachable witnesses would be enough Hereasoned that the underlying rationale, 'the mind' of the decretal waswhat counted, and that the mention of the parish priest was a matter ofaccident, not substance.41 Hence two witnesses sufficed Other canon-

35 X 3.26.10 36 X 3.26.11.

37 Alexander Tartagnus (d 1477), Consilia (Frankfurt 1575) Lib I, Cons 41, no 5.

38 Franciscus Mantica (d 1614), Tractatus de coniecturis ultimatum voluntatum

(Turin 1631) Lib II, tit 14 proem.

39 Ibid nos 1, 4.

40 Ibid no 23: 'Deus non curat nisi de intentione testatoris', speaking here of the

internal forum.

41 Commentaria in quinque HbrosDecretalium (Venice 1578) at X 3.26.10, no 3: 'Ego

credo quod mens istorum textuum sit quod valet testamentum etiam cum duobus testibus sive sit ad pias causas sive non et quod dicit de presbytero loquitur secundum consuetudinem et accidentia facti.'

14 Roman canon law

ists took a stricter view, some even holding that a higher standard than that found in the decretal should be required 42

Complicating the matter, at least on the Continent, was the vexed question of which court system was the proper forum for probate and the existence of many local statutes regulating the law of succession.

Testamentary law was not a strictly spiritual matter under the ius

commune, and there was variety of approach in various parts of

Europe Commentators took these factors into account They strove

to fit the pieces together They tried to arrive at the just solution, balancing both texts and policy In other words, what would look to

be a fairly straightforward question if one took the decretals as statutes

in the modern sense in fact became a much more complicated inquiry

in the hands of the medieval commentators.

Any student of the medieval Roman and canon laws must be struck

by how often this situation recurred Many important legal questions were subject to doubt, discussion and dispute Were personal tithes

owed to the clergy iure divino, or could they be abrogated or

dimin-ished by prescriptive non-payment? 43 Could a child's share of his deceased parent's estate be taken away, either wholly or in part, by statute or local custom ? 44 Even many a minor point - what penalty was

to be meted out to a man who had kissed a mature but unwilling virgin

in the streets of Naples? - was capable of causing lengthy scholarly controversy 45 About these, and many other questions, the doctores were variiet diversi.^ Sir Edward Coke's complaint that the tradition

of the Roman canon law tradition was a 'sea full of waves' is amply confirmed by comments of writers from within that tradition 47 As one

42 T h e locus classicus for discussion of the various opinions on the subject is X 3.26.10; see, e.g., Panormitanus, Commentaria in librosDecretalium (Lyons 1562) ad id H e

personally rejected de Butrio's solution, but argued that the presence of two ditional witnesses might take the place of the parish priest See also Angelus de

ad-Gambilionibus (d post 1451), Tractatusinmateria testamentorum (T.U.I VIII:1)

Pt 1, no 16.

43 See Petrus Rebuffus (d 1557), Tractatus de dedmis (Antwerp 1615) Quaest 13,

nos 43-4.

44 Andreas Gail (d 1587), Observationespracticae imperialis camerae (Turin 1595)

Lib II, Obs 122.

45 Matthaeus de Afflictis (d 1510), Decisiones sacri regiiNeapolitan consilii

(Frank-furt 1616) Dec 286.

46 Decisiones antique sacre Romanae Rotae y No 29.

47 Second Part of the Institutes of the Laws of England (1642), Proeme, at end.

early Spanish jurist put it, 'Whenever there art opinionesDoctorum on

any question, the question becomes a doubtful one.'48

It is fair and important to add that out of the jurists' discussion very

often a communis opinio emerged It might be dissented from, but

only for weighty reasons.49 No legal system can tolerate endless certainty, and the existence of such an academic consensus was oneway the Roman canon law avoided, or at least minimized, that danger.None the less, it did tolerate a degree of disagreement and uncertaintygreater than is consistent with the vision of an ordered system ofstatute law and appellate courts that both Maitland and Stubbs car-ried into their original controversy More could be, and was, left open

un-to doubt and discussion More could be, and was, left open un-to localcustomary practice

Whether a modern student finds this feature of the ius commune

attractive or off-putting must depend to some extent upon personaltaste Certainly it had its critics at the time One sixteenth-centuryjurist wrote of the learned law, T h e worst of all (its) vices is theuncertainty that proceeds from the disputations and opinions of thecommentators.'50 The humanists said worse.51 Jeremy Taylor, theseventeenth-century English divine, who examined the canonical rulerequiring all defendants to be legitimately cited as a representativeexample of the canonical rules discovered that, 'of this rule Porciusbrings an hundred and sixteen ampliations and an hundred and fourand twenty limitations'.52 The books of the Roman and canon law, heconcluded, were 'a laborious vanity, consumptive of our time andhealth to no purpose'.53

There was (and is) another side All sophisticated legal systems

48 Rodericus Suarez (fl 1494), Allegationes et consilia, Alleg 25, nos 5-6, in Opera

omnia (Frankfurt 1594): 'Nam quando super aliqua quaestione sunt opiniones

Doctorum, ex hoc efficitur quaestio dubia Opiniones enim Doctorum faciunt rem ambiguam.'

49 See Helmut Coing, Europdisches Privatrecht 1500 bis 1800 (1985) 1:124—6; Luigi

Lombardi, note 34.

50 Nicolaus Vigelius (d 1600), Methodus universiiurispontificii (Basel 1577), Proem:

'Pessimum omnium vitium est ipsa legum canonumque incertitudo quae ex terpretum disputationibus ac opinionibus procedit.' See also Matthaeus de Afflictis,

in-Decisiones sacri regii Neapolitani consilii (Frankfurt 1616), Dec 1, nos 11-14.

51 Julian H Franklin, Jean Bodin and the Sixteenth-Century Revolution in the odology of Law and History (1963) 18-58.

Meth-52 Ductor dubitantium (1676), p v.

53 Ibid p viii See also the interesting contrast, found in Strype's Annals *551,

between the 'speculation' said to be characteristic of civilian studies and the more healthful certainty characteristic of the study of divinity.

16 Roman canon law

leave room, for line drawing, distinction and consequent ment Sometimes the lines are fine and the distinctions complex Thesixteenth-century English common law contained many such andwould know many more It may also be that, given the conditions oflife in the Middle Ages, the existing Roman canon law was a moreflexible and realistic system than one that pretended to leave fewmatters open to doubt It provided more room for interplay betweenjudges and those whose lives were affected by the law than one thatpurported to rely on unalterable rules

disagree-Moreover, at least as it seemed to the canonists and civilians, thecanon law as understood in the Middle Ages accurately portrayed thelimited capabilities of all who enforced and interpreted the legal rules.None of them thought they deserved to speak with absolute certaintyabout the law.54 As long as law was meant to do justice, there wasreason for diffidence Their characteristic (and to modern lawyerstedious) recitations and balancing of texts and opinions pro and conwere the inevitable result We can only recognize how normal theywere in the Roman canon law, and how essential recognizing theirexistence is to its comprehension today

The limitations of the positivist model of law that Maitland and hisopponents brought to the subject are, if anything, more evident if onemoves from academic commentaries to accounts of Continental court

practice Decisio 184 from the widely circulated collection of cases

from the diocese of Toulouse provides a good example This decision,from 1393, involved a question of what procedure was necessarybefore remitting a cleric from a temporal to an ecclesiastical court.One proctor argued against remission, basing his argument on a papal

decretal found in Liber Sextus However, the decisio continues, 'It

was replied by the archbishop's court that notwithstanding the sition of the said king's proctor the said remission ought to be made,because the said text has never been used in practice.'55 In otherwords, the French ecclesiastical lawyers themselves did not feel them-selves bound by the cited text, at least when it would have workedagainst their interests That particular law had never been enforced

oppo-54 See the remarks by E W Kemp in Introduction to Canon Law, note 34, at 31-2.

55 Decisiones capellae Tholosanae (1543), Quaest 184: 'Replicatum fuit per curiam

archiepiscopi quod non obstante oppositione dicti procuratoris regii debeat fieri

dicta remissio quia nunquam dictus textus fuit practicatus.' See also Additio ad

Quaest 133: 'Adde quod licet iudex ecclesiasticus possit compellere iudicem poralem ut repellat excommunicatos ab actibus judicialibus de generali consue- tudine Francie istud non servatur.'